Crosby v. Social Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard S. Crosby
v. 	Case No. 23-cv-379-SE-AJ
Social Security Administration
Report and Recommendation
Richard Crosby, proceeding pro se and in forma pauperis,
has filed a complaint challenging the actions and decision of
the Social Security Administration (“SSA”) on his application
for benefits.1 In this case, Crosby alleges violations of federal
criminal statutes, the Social Security Act, and the Tax Code.
The case was referred for preliminary review pursuant to 28
U.S.C. § 1915(e)(2) and Local rule 4.3(d)(2).
Preliminary Review Standard
On preliminary review, the court determines whether,
stripped of legal conclusions, and with all reasonable
inferences construed in the plaintiff's favor, the complaint
1 Between June 2022 and August 2023, Crosby has filed four
cases against the SSA. Crosby v. SSA, 23-cv-379-SE-AJ (D.N.H.
filed Aug. 3, 2023) (alleging fraud); Crosby v. SSA, 23-cv-108-
LM-AJ (D.N.H. filed Feb. 8, 2023, closed Mar. 6, 2023, affirmed
on appeal July 11, 2023) (seeking review pursuant to 42 U.S.C. §
405(g)); Crosby v. SSA, 22-cv-469-SM (D.N.H. filed Nov. 7, 2022,
closed Dec. 1, 2022)(seeking social security disability
insurance benefits); Crosby v. SSA, 22-cv-234-SE (D.N.H. filed
June 29, 2022, closed Aug. 19, 2022) (seeking social security
benefits and alleging SSA fraud).
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contains “sufficient factual matter, accepted as true, to state
a claim to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted). The court may dismiss claims sua
sponte if, among other things, the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See LR
4.3(d)(1). The court construes pro se plaintiffs’ filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Background
In his current complaint, Crosby alleges that he applied
for social security benefits on March 1, 2013. On November 7,
2014, the SSA determined that Crosby had been disabled by severe
mental impairments since March 2013 and awarded him social
security disability insurance (“SSDI”) benefits. After that
favorable decision, however, the SSA reopened Crosby’s
application, and, he alleges, made changes to his work history.
The changes may have been related to an IRS tax lien or to a
failure to file income tax returns.
The SSA’s changes affected Crosby’s insured status and made
him ineligible for SSDI benefits. On July 6, 2015, the SSA
notified Crosby that he was not eligible for SSDI benefits.
Crosby alleges that the SSA awarded him supplemental security
income (“SSI”) instead of the disability insurance benefits he
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had previously been awarded. Recently, Crosby has asked the SSA
to review his self-employment earnings records for the years of
2001, 2002, and 2003, but the SSA replied that Crosby filed his
tax returns for those years after the SSA’s deadline for doing
so had passed.
Crosby brings six claims against the SSA. In Count I,
Crosby alleges that the SSA violated 18 U.S.C. § 1341, which
prohibits mail fraud, by fraudulently removing years from his
work history to deny him disability insurance benefits and using
incorrect dates to fraudulently state that he filed his tax
returns beyond the SSA deadline. In Count II, Crosby alleges
that the SSA has committed mail fraud in violation of 18 U.S.C.
§ 1343, which prohibits wire fraud, by using the mail in
connection with changing his work history and denying him
benefits. In Count III, Crosby alleges that the SSA has
committed wire fraud in violation of 18 U.S.C. § 1344, which
prohibits bank fraud, by using wire communications to deny him
disability insurance benefits. In Count IV, Crosby alleges that
the SSA violated the public trust in violation of 18 U.S.C. §
286, which prohibits conspiracy to defraud the government with
respect to claims, by removing years from his work history to
deny him disability insurance benefits. In Count V, Crosby
alleges that the SSA violated a provision of the Social Security
Act, 42 U.S.C. § 405(h), by removing years from his work
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history. In Count VI, Crosby alleges that the SSA violated the
“26 U.S.C. § 6020(2)” of the Tax Code, by stating that he filed
his tax returns beyond the deadline.
Discussion
Even viewed generously, as is appropriate for pro se
litigants, Crosby has not stated an actionable claim. For that
reason, all of Crosby’s claims should be dismissed and the case
should be closed.
A. Criminal Statutes
In the first four counts he asserts, Crosby alleges
violations of criminal statutes, 18 U.S.C. §§ 286, 1341, 1343,
and 1344. Those statutes, however, do not provide private causes
of action. See Holscher v. Hess, 837 F. App'x 560 (9th Cir.
2021) (no private right of action for mail fraud under § 1341);
DuBois v. Alves, No. CV 22-11203-RGS, 2022 WL 4376041, at *3 (D.
Mass. Aug. 22, 2022) (no private right of action for wire fraud
under § 1343), appeal dismissed, No. 22-1704, 2022 WL 19078141,
at *1 (1st Cir. Dec. 22, 2022); Ritrovato v. E. Bank, No. CV 23-
10713-RGS, 2023 WL 3260221, at *1 (D. Mass. May 4, 2023) (no
private right of action for bank fraud under § 1344); Smith v.
Wells Fargo Bank, N.A., No. 1:16 CV 08, 2016 WL 302206, at *2
(N.D. Ohio Jan. 25, 2016) (no private right of action for fraud
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on the United States in violation of § 286). To the extent
Crosby intended to allege state law fraud claims in Counts I
through IV, those claims also would not be actionable because
they are barred by sovereign immunity. See 28 U.S.C. § 2680(h);
42 U.S.C. § 405(h); Crosby v. SSA, 2022 DNH 99, 2022 WL 3544370,
at *3-*4 (D.N.H. Aug. 18, 2022). Therefore, the District Judge
should dismiss Counts I through IV as those counts are not
actionable.
B. Violation of the Social Security Act
In Count V, Crosby alleges that the SSA’s actions in his
case violated § 405(h) of the Social Security Act, which
provides:
The findings and decision of the Commissioner of
Social Security after a hearing shall be binding upon
all individuals who were parties to such hearing. No
findings of fact or decision of the Commissioner of
Social Security shall be reviewed by any person,
tribunal, or governmental agency except as herein
provided. No action against the United States, the
Commissioner of Social Security, or any officer or
employee thereof shall be brought under section 1331
or 1346 of Title 28 to recover on any claim arising
under this subchapter.
42 U.S.C. § 405(h). To the extent Crosby intended to allege that
the SSA could not reopen his case because the initial decision
was binding, he is mistaken. The SSA Commissioner may reopen a
decision in certain circumstances, including a situation in
which there is good cause to do so within four years of the
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initial determination, or at any time when the determination
was, among other things, obtained by fraud. See 20 C.F.R. §
404.988.
The Appeals Council stated in its July 6, 2015 decision
that the initial favorable decision on Crosby’s application was
reopened pursuant to 20 C.F.R. §§ 404.987-989, that Crosby was
given an opportunity to submit new comments and material
evidence in the reopened matter, and that Crosby did not provide
new comments or material evidence. Crosby alleges no facts to
demonstrate a violation of 42 U.S.C. § 405(h). Further, as was
already decided in Crosby’s first case in this court, § 405(h)
bars Crosby’s claims against the SSA because Crosby is seeking
to recover social security benefits. See Crosby, 2022 WL
3544370, at *3. The District Judge, therefore, should dismiss
Count V.
C. 	Violation of the Tax Code
In Count VI, Crosby alleges that the SSA violated Ҥ
6020(2)” of the Tax Code. Section 6020 provides as follows:
(a) Preparation of return by Secretary.--If any person
shall fail to make a return required by this title or
by regulations prescribed thereunder, but shall
consent to disclose all information necessary for the
preparation thereof, then, and in that case, the
Secretary may prepare such return, which, being signed
by such person, may be received by the Secretary as
the return of such person.
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(b) Execution of return by Secretary.--
(1) Authority of Secretary to execute return.--If
any person fails to make any return required by
any internal revenue law or regulation made
thereunder at the time prescribed therefor, or
makes, willfully or otherwise, a false or
fraudulent return, the Secretary shall make such
return from his own knowledge and from such
information as he can obtain through testimony or
otherwise.
(2) Status of returns.--Any return so made and
subscribed by the Secretary shall be prima facie
good and sufficient for all legal purposes.
26 U.S.C. § 6020. Crosby’s reference to “6020(2)” is unclear.
He may have intended to cite § 6020(b)(2), which provides that
substitute tax returns made by the Secretary are sufficient,
because the SSA did not accept his tax returns. He does not
allege, however, that a substitute return was made by the
Secretary for him or that the SSA refused to accept his tax
return because it was a substitute return prepared under §
6020(b)(2). Section 6020 does not pertain to the SSA’s deadline
for filing tax returns, nor do the actions by the SSA that
Crosby alleges appear to violate any part of § 6020. Further,
there is no private right of action under § 6020, even when a
substitute return is filed pursuant to the statute. See Calen v.
United States, No. 18-cv-2183(JMA)(AKT), 2021 WL 4356041, at *8
(E.D.N.Y. Sept. 24, 2021); In re Rae, 436 B.R. 266, 273 (D.
Conn. 2010).
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Conclusion
For the foregoing reasons, the District Judge should
dismiss the complaint (doc. no. 1) for failure to state a
cognizable claim, and should direct the Clerk of Court to enter
judgment and close the case. Any objections to this Report
and Recommendation must be filed within fourteen days of receipt
of this notice. See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion.
Only those issues raised in the objection to this Report
and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 14, 2023
cc: Richard S. Crosby, pro se
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